APPELLANTS' REPLY BRIEF
"We all agree that the plaintiffs in this case – Varian Medical Systems, Inc., Varian Semiconductor Equipment Associates, Inc., Susan Felch, and George Zdasiuk (hereafter Varian) – did not suffer any economic harm as a result of the Internet antics of Michelangelo Delfino and Mary E. Day. It is also plain that the plaintiffs’ reputations are unscathed. Varian’s business is booming. (6 AA 1360.) And nobody really believes, for example, that Felch had a semen stain on her dress, (RB 11) or that Zdasiuk is stupid (RB 19).
Varian’s real complaint is that Delfino and Day have disturbed the “peace of mind” of the corporate and individual plaintiffs. (RB 1.) But the law does not promise anyone peace of mind and does not redress its disturbance, except where the disturbance is tortious. Life is full of unactionable disruptions to peace of mind, from the cradle to the grave. Children may be upset by the schoolyard taunts of an insensitive playmate, but they do not have a cause of action for defamation. The daily inter-personal stresses of adult life – family strife, disagreements with co-workers, disappointment with friends – are legion, but they are not to be litigated. “The law of defamation teaches . . . that in some instances speech must seek its own refutation without intervention by the courts. In this case if the [defendants] chose to get in the gutter, the law simply leaves [them] there. . . . This is the precise sort of contest that society can endure without redress from the courts. Base and malignant speech is not necessarily actionable.” (Koch v. Goldway (9th Cir. 1987) 817 F.2d 507, 510.)
Varian complains that Delfino and Day “have sought shelter under high principles of First Amendment law.” (RB 1.) But if those high principles do not provide such shelter, they are meaningless. We believe they are not meaningless, and they do provide the shelter that Varian decries. They shelter free expression – which is what Delfino and Day have indulged – however offensive it may be."
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